Dyslexia and a fair hearing before the Employment Tribunal

In Habib v Dave Whelan Sports Ltd t/a DW Fitness First EAT [2023] 113, Ms Habib brought various claims before the employment tribunal, which were rejected following a final merits hearing.

During the hearing, Ms Habib claimed to be experiencing difficulties due to dyslexia. The tribunal found that her ability to follow proceedings and understand particular words was inconsistent throughout the hearing. It concluded that there was an element of performance and exaggeration in Ms Habib’s difficulties. It further found that this mirrored the way she had behaved towards her employer.

The EAT upheld Ms Habib’s appeal, noting that the duty to ensure that a disabled person has effective access to justice ultimately falls upon the tribunal. Accordingly, the employment tribunal erred by failing to have regard to the Equal Treatment Bench Book and Presidential Guidance on vulnerable witnesses when dealing with Ms Habib who said she was experiencing difficulties due to dyslexia.

The Equal Treatment Bench Book published by the Judicial College aims to increase awareness and understanding amongst the judiciary of the different circumstances of people appearing in courts and tribunals. It helps enable effective communication and suggests steps which should increase participation by all parties.

More specifically, the Bench Book provides that parties with dyslexia should be reassured that misunderstandings on their part will not be treated as evasiveness and inconsistencies will not be regarded as indications of untruthfulness. However, the tribunal had relied on those very matters as reasons to doubt her evidence.

This rendered the hearing unfair, meaning that the claims had to be remitted to a fresh employment tribunal for a complete rehearing.